City of Mt. Vernon v. Cockrum

Mr. Justice Green delivered the opinion of the Court. The evidence shows that on the day of the accident, appellee, accompanied by some other persons, had gone to a funeral, in a farm wagon, drawn by a team of gentle horses. She was detained at the funeral until late in the afternoon, and those who had accompanied her concluded to remain with relatives, and she procured a gentleman to return with her in the same wagon, drawn by the same team. Some distance back from the bridge in question, the gentleman complained of toothache, told her he must light his pipe and smoke to allay the pain. He then handed the lines to her and asked her to drive. This she did, without hesitation, as she had been raised on a farm and knew how to .drive a team. While driving south on a public street of the city of Mt. Yernon, and approaching the bridge, she drove slowly and carefully and was talking with her companion, but testified she paid attention to the driving and keeping the team in the middle of the highway. It was very dark, and she could not see the bridge as she approached it, but by noticing the houses and fences on each side of the street as she drove along, was, as she thought, thereby enabled to keep in the center and naturally supposed that to be the proper and safest place to travel in. The bridge was about thirty feet long, five or six feet wide, and was built diagonally across a part of the sixty foot street, over a small ravine or ditch. The east end of the bridge was within a few feet of the sidewalk on the east side of the street, and the west end was about twenty feet from the sidewalk on the west side, and was four and a half feet west of the center of the street. Some time before the accident, in repairing this bridge, appellant put in a plank, the end of which extended about eighteen inches beyond and west of the west ends of the other planks, and it remained and was in that condition when appellee was injured. Appellee ivas not apprised of this, and had never driven or ridden along that street and over that bridge before the day the accident occurred. While driving along, as before described, the horses stepped on the bridge, but the west front wheel missed it, dropped into the ditch, which was about two feet and a half deep, and struck the end of the projecting plank so suddenly and with such force as to throw appellee from her seat, over the end of the wagon, on to the bridge, and injured her seriously. The wheel was so jammed in between the bank of the ditch and this plank, that it was necessary to saw off the projecting part of the plank before the wagon could be gotten out. The evidence justified the jury in finding the facts to be as thus stated, and we will now recur to the reasons urged for reversal, which we have mentioned in the statement of the case. The contributory negligence relied on to defeat the suit is based upon the assumption that appellee knew the location and condition of the bridge, and by engaging in conversation, her attention was diverted from the team, and hence she did not drive and manage it with care, and did not keep a careful lookout for the bridge as she approached it. If her testimony is true, and no cause is shown why it should be discredited, the assumption is unwarranted. She denied knowledge of the condition of the bridge and testified she was driving slowly and carefully, and trying to keep the team in the center of the street, and the evidence satisfies us that she exercised all reasonable care for her personal safety that the law required. It was not error to direct the jury, in case they agreed, to sign the verdict, place it in an envelop and seal it, and return it into open court. It does not appear appellant’s rights wrere prejudiced by such an action, but it was a proper exercise of the discretionary power of the court, commended in numerous cases, and by this court in St. L., V. & T. H. R. R. Co. v. Faitz, 19 Ill. App. 88; City of Fairfield v. Hornick, 55 Ill. App. 561; and St. L., A. & T. H. R. R. Co. v. Will, Id. 649. The refused instructions are not in the abstract, nor are any instructions set forth therein, and we have repeatedly held, in such case, we would not search the record for the instructions criticised, or refused. Hence ive decline to consider the error assigned for refusing to give certain instructions to the jury on behalf of defendant. The remaining question necessary to consider and determine is, does the evidence establish the fact that defendant was guilty of negligence as charged in maintaining a bridge • in one of its public streets in an unsafe and dangerous condition, and in a bad state of repair. The facts proved and undisputed are, that the bridge in question was built and maintained in a public street of defendant, over and along which the public traveled in the night time, as also in the day time; that a natural ravine or ditch crossed this street, and the bridge was built over a part of it; that from the center of the street to the west end of the bridge the distance was about four and a half feet, and immediately at that end there was a hole in this ditch, entirely uncovered, about two and a half feet deep, and the projecting plank left in the bridge as before described. The slightest care or diligence on the part of the city authorities would have informed them that a person traveling along this street in the dark, trying to drive in the center of the street, which would be prudent and proper with the west end of the bridge so near the center, might miss the bridge, and the wheel of the vehicle drop into this hole and strike the end of the projecting plank, and injury to the traveler result, as in this case did result to appellee, and there was suffi* cient evidence to justify the jury in finding appellant violated the duty imposed upon it by law, to use reasonable care to keep its streets and bridges thereon in reasonably safe condition for the use of the public, and was guilty of such negligence in repairing the bridge in question and maintaining it in the condition it was, in view of its location and the surroundings, as rendered the city liable to respond in damages to appellee for the injuries she received. The negligence of appellant was a question of fact for the jury, and their verdict ought not to be disturbed in a court of review unless it appears the jury have misapprehended or disregarded the evidence, or that their verdict is the result of prejudice or passion. This rule has been adhered to uniformly by the Supreme Court and in the other appellate districts, and by this court, and verdicts have been often sustained in this class of cases where the negligence proven was slighter and less culpable than that disclosed in this record. Some authorities in support of the views thus expressed, are : Joliet v. Verley, 35 Ill. 58; City of Lacon v. Page, 48 Ill. 499; Joliet v. Shufeldt, 144 Ill. 493; Village of Clayton v. Brooks, 150 Ill. 97; Village of Jefferson.v. Chapman, 27 Ill. App. 43, and cases there cited; City of Salem v. Harvey, 29 Ill. App. 483; City of Champaign v. Jones, 32 Ill. App. 179; City of Mt. Carmel v. Howell, 36 Ill. App. 68; City of Mt. Vernon v. Lee, Id. 24; City of LaSalle v. Porterfield, 38 Ill. App. 553; City of Vandalia v. Ropp, 39 Ill. App. 344; Town of DeSoto v. Buckles, 40 Ill. App. 86; City of Vandalia v. Bliss, 41 Ill. App. 517; City of Joliet v. Shufeldt, 42 Ill. App. 208. Ho good reason is perceived for reversing the judgment and it is therefore affirmed.